Constitutional Court shuts door on foreign nationals being admitted as lawyers

The country’s apex court has overturned a ruling that had declared the Legal Practice Act unconstitutional, in so far as it only allows South African citizens or permanent residents, to be admitted as lawyers.

In September, the Bloemfontein High Court declared as unconstitutional and invalid section 24(2) of the Legal Practice Act (LPA) – which states that “a person may only practise as a legal practitioner if he or she is admitted and enrolled to practise as such in terms of this act” and that “the High Court must admit to practise and authorise to be enrolled as a legal practitioner, conveyancer or notary or any person who, upon application, satisfies the court that he or she [among others] is a South African citizen; or permanent resident in the Republic”.

This on the back of two initially separate applications from Lesotho citizens Relebohile Rafoneke and Sefoboko Tsuinyane. Despite the fact that they successfully completed their law degrees and articles in South Africa, the two could not be admitted because of the relevant legislation. The applications were ultimately heard together.

And in February, the High Court’s ruling came before the Constitutional Court for confirmation. But the Constitutional Court has now declined to confirm it.

Justice Zukisa Tshiqi – who penned the unanimous decision – found that while the right to choose your trade, occupation or profession freely was enshrined in section 22 of the constitution, the right was only extended to citizens. “Section 22 is silent regarding non-citizens and, consequently, does not afford that right to them,” she said.

“The Legislature is therefore at liberty to decide how far to extend admission into the legal profession to non-citizens and it has chosen to draw the line at permanent residents. That the Legislature has not gone further to include refugees and asylum seekers cannot be challenged by non-citizens under section 22. They do not enjoy a section 22 right”.

Furthermore, Tshiqi found the bar on admitting non-citizens or permanent residents, served a legitimate government purpose. “While this policy may be open to debate, the fact that the Legislature has adopted it is not arbitrary or illegitimate. It is restrictive and protectionist, and those are permissible governmental objectives,” she said.

“The simple point is that the Legislature has differentiated between permanent residents and other kinds of residents. It has done so to protect opportunities for South Africans. That is a permissible policy to adopt. There is a proper basis to distinguish the position of permanent residents and other categories of residents. Therefore, the line drawn in the LPA is similarly permissible. This is primarily a policy decision that serves a legitimate government purpose”.

She also highlighted that the non-citizens or permanent residents could still find employment in the broader legal profession that didn’t require admission as a legal practitioner: “They are therefore not left destitute with no alternative source of employment. The activity which the applicants seek constitutional protection for is the enjoyment to choose one’s vocation and as such this cannot be held to amount to unfair discrimination, as this right does not fall within a sphere of activity protected by a constitutional right available to foreign nationals such as the applicants”. Tshiqi added that “it follows that, as the discrimination is not unfair”.

The Minister of Justice, Ronald Lamola, had opposed the confirmation of the High Court’s ruling. In a statement on Tuesday, he welcomed the outcome.

-EWN

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